Kathleen K. v. Robert B., 150 Cal.App.3d 992 (1984)

CASE: Woman sues man for giving her genital herpes.

FACTS: Woman, a nurse, sues man, a doctor, for infecting her with genital herpes even after he told her that he was disease free. Trial court dismisses on the pleadings; plaintiff appeals.

PLAINTIFF ARGUES:

  1. Negligence (for inflicting injury upon her by having sexual intercourse with her at a time when he knew, or in the exercise of reasonable case should have known, that he was a carrier of a veneral disease;
  2. Battery;
  3. Fraud (for deliberately misrepresenting to plaintiff that he was free from V.D. and that plaintiff, having relied on this misrepresentation, had sex with the defendant, which she would not have done had she known the true state of affairs.

DEFENDANT ARGUES: Steven K. should rule in this case and dictates an affirmance of the trial court decision. Further, it is not the business of the courts to "supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct."

COURT SAYS: Judgment reversed (finding for the plaintiff).

HOLDING: Tortious to lie to another person by saying you do not have any verneral diseases when you knew or should have known that you do have a veneral disease, then transmitting herpes to that person through sexual contact.

RATIONALE:

  • The individual's right to privacy is outweighed by the state's interest in protecting the health, welfare and safety of its citizens.
  • "The tortious nature of the defendant's conduct, coupled with the interest of the state in the prevention and control of contagious diseases, brings appellant's injury within the type of physical injury contemplated by the court in Barbara A."
  • This is not a case of seduction in which the plaintiff is suing because the defendant induced her to "step aside from the paths of virtue", but an action for the injuries to her body that he inflicted upon her through his misrepresentation.


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